Opinion
F071350
10-12-2017
THE PEOPLE, Plaintiff and Respondent, v. LADERRICK SUTTON, et al., Defendants and Appellants.
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant Laderrick Sutton. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Jaubrae Dixon. Michael McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Ladarieus Jones. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Alice Su and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF155287A, BF155287B, BF155287E)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant Laderrick Sutton. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Jaubrae Dixon. Michael McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Ladarieus Jones. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Alice Su and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jaubrae Dixon, Ladarieus Jones, and Laderrick Sutton were jointly prosecuted on charges arising from a shooting incident. Each was convicted of active participation in a criminal street gang and unlawful firearm possession. Dixon and Sutton were also found guilty of committing assault with a firearm. Jones was sentenced to a total of five years in prison. Dixon and Sutton received aggregate prison terms of 19 years and 18 years, respectively.
The claims on appeal allege instructional error and insufficiency of the evidence. Dixon, who was 17 years old at the time of the offenses, makes an additional claim of sentencing error and also argues for retroactive application of the Public Safety and Rehabilitation Act of 2016 (Proposition 57). We affirm the judgments against Jones and Sutton in full. As to Dixon, we modify the judgment to strike an erroneously imposed enhancement and, as so modified, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants were among five individuals charged in connection with events that occurred in Bakersfield on June 3, 2014. The charges against codefendant Andre Leiva were resolved by way of a pre-trial disposition. Codefendant Jervern Weldon was tried and convicted of various crimes but is not a party to this appeal.
The operative criminal information alleged attempted murder (Pen. Code, §§ 187, 664; count 1); shooting at an occupied vehicle (§ 246; count 2); active participation in a criminal street gang (§ 186.22, subd. (a); count 3); carrying a loaded firearm in public as an active gang member (§ 25850, subd. (c)(3); count 4); possession of a firearm by a convicted felon (§ 29800, subd. (a)(1); count 5 [Sutton only]); assault with a firearm (§ 245, subd. (a)(2); count 6); and false representation of identity to a police officer (§ 148.9, subd. (a)); count 7 [Dixon only]). Count 6 included gang- and firearms-related enhancement allegations (§§ 186.22, subd. (b), 12022.5, subd. (a)). It was further alleged that Jones had served two prior prison terms (§ 667.5, subd. (b)), and that Sutton had suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d)).
Unless otherwise specified, all further statutory references are to the Penal Code.
The recidivist enhancement allegations were addressed in a bench trial and found to be true. All other charges and allegations were tried before a Kern County jury. Viewed in the light most favorable to the prosecution, the trial evidence established the following facts.
Darrius Burton, a self-described "affiliate" of a criminal street gang in Bakersfield known as the Eastside Crips, spent the night in question at a motel located at 350 Oak Street. Shortly before 2:00 a.m., Burton left his room and departed from the premises in an automobile. As he was driving out of the parking lot, he heard the sound of gunfire. Burton later sent a text message to his girlfriend informing her that someone had shot at him.
A witness who lived near the motel heard the gunshots. Shortly thereafter, she observed six or seven African-American males running toward, and then "jumping" into, a black automobile. The car proceeded south on Olive Street before turning eastbound onto Bank Street. Later, during a field show-up conducted by police, the witness identified Jervern Weldon as being one of the men whom she had seen entering the vehicle.
Police officers were dispatched to the motel and then redirected to the 1900 block of Bank Street, where a sheriff's helicopter had spotted a suspicious vehicle. The officers arrived to find a black Ford Crown Victoria sedan parked in the street with its right front and rear doors opened. Two individuals, one of whom was later identified as Laderrick Sutton, were observed walking away from the car. Four occupants remained inside of the vehicle, including Andre Leiva (located in the driver's seat), Jaubrae Dixon (back left passenger side), and Ladarieus Jones (back middle). When contacted by the investigating officers, Dixon falsely identified himself as "Brian Johnson."
Codefendant Weldon was found hiding behind a tree at a nearby location, close to the intersection of F and 2nd Streets. The sheriff's helicopter had tracked Weldon's movements from the Crown Victoria and reported to officers on the ground that he had briefly entered the yard of a residence on Bank Street. A search of that property yielded two handguns: a .45-caliber Ruger, which appeared to have been shot empty, and a .9-millimeter Ruger containing two live rounds. The guns were found hidden underneath a pile of leaves.
After the suspects were detained, police officers went to the motel to look for evidence. Two .45-caliber shell casings were recovered from the parking lot. Forensic analysis confirmed that both casings had been fired from the .45-caliber Ruger found on Bank Street. Police also obtained surveillance footage from the motel, which documented the shooting from multiple camera angles. The video was shown to the jury.
The video shows victim Burton begin to walk down an outside stairway to the motel parking at approximately 1:55:02 a.m., just moments after the door to an adjacent room has opened. As Burton nears the bottom of the steps, a group of African-American males exit the room: Weldon, followed by Dixon, then Jones and Sutton. Following behind Sutton is a man with a large hat hanging from a string around his neck; this person is the actual shooter, but police were never able to identify him. Two more people emerge from the room, including someone named Latimore Hunter, and join the rest of the group on the landing as they watch Burton walk to his car.
Hunter was the fourth person seated inside of the black Crown Victoria at the time of appellants' arrest.
Sutton can be seen descending the stairs as Burton enters his vehicle. Meanwhile, Dixon and Weldon confer with each other at the top of the steps and possibly exchange an item. Dixon proceeds down the stairs, coming into contact with Sutton at about the halfway point, then moves past him and into the parking lot. Next, Dixon produces a gun, extends his right arm, and points the firearm at Burton's car as it is backing out of a parking space. One of the camera angles shows a gun in Dixon's outstretched hand at 1:55:35 a.m. At virtually the exact same moment, the unidentified gunman takes aim from the top of the steps. He then races down the stairs and into the parking lot, firing a shot at approximately 1:55:39 a.m., and chases after Burton's car until it enters the road and drives away.
Dixon apparently had difficulty firing his weapon. The video shows him aiming toward Burton's car for approximately two seconds, then lowering the firearm and looking over at Sutton before extending his arm forward a second time. Sutton reaches out, takes the gun from Dixon, and holds it while watching Burton drive out of the parking lot. Sutton has actual possession of the gun for approximately five seconds. He hands it back to Dixon near the bottom of the stairs at approximately 1:55:42 a.m. Dixon ascends the steps and, upon reaching the second floor landing, tucks the gun into the front waistband of his jeans.
Jones remained on the second floor throughout the shooting. The video shows him standing behind Weldon, near a trash can, when Dixon and the unidentified shooter initially take aim at Burton's vehicle. Jones suddenly crouches down and runs in the opposite direction of the others, which coincides with a shot being fired as the shooter enters the parking lot. Seconds later, Jones rushes back toward the stairs as Dixon is coming up the steps with a gun in his hand. Jones looks at Dixon and points down the hallway, gesturing for him to head in that direction. Dixon moves onward as per Jones's signal, and is soon followed by Jones, Weldon, Sutton, the unidentified shooter, and others.
Officer Keegan Gavin of the Bakersfield Police Department testified as the People's gang expert. He attested to the existence of a Bakersfield-area criminal street gang called the Westside Crips, whose rivals include the aforementioned Eastside Crips. A combination of Officer Gavin's testimony and other photographic and documentary evidence - consisting of material obtained from cellphones, Facebook accounts, and court records - showed that the defendants were members of the Westside Crips during the relevant time period. In response to hypothetical questions designed to mirror the underlying facts, Officer Gavin provided opinions regarding the gang-related nature of the charged offenses.
The jury returned mixed verdicts. Jones was acquitted of attempted murder, shooting at an occupied vehicle, and assault with a firearm (i.e., counts 1, 2, and 6). He was convicted of the substantive gang offense (count 3) and of carrying a loaded firearm as an active gang member (count 4).
As to Dixon and Sutton, the jury hung on count 1 by a vote of seven to five in favor of a guilty verdict. Both were acquitted of shooting at an occupied vehicle and convicted as charged on counts 3, 4, and 6. Sutton was additionally convicted of being a felon in possession of a firearm (count 5), and Dixon was found guilty of false representation of identity to a police officer (count 7). The gang enhancement allegations were found to be true. The count 6 allegations concerning personal use of a firearm were found true as to Dixon but not true as to Sutton.
With further regard to Dixon and Sutton, the trial court declared a mistrial on count 1 and granted a prosecution motion to dismiss the charge. The court also ordered a post-verdict dismissal of count 3, accepting defense counsel's argument that it constituted a necessarily included offense vis-à-vis count 4. (See People v. Robles (2000) 23 Cal.4th 1106, 1115; People v. Flores (2005) 129 Cal.App.4th 174, 184.) Jones's trial attorney conceded that Jones was not entitled to such a dismissal because his conviction for active participation in a criminal street gang was not based on the crime of carrying a loaded firearm, but rather possession of a firearm by a convicted felon.
Jones does not address this issue on appeal. We express no opinion regarding the merits of his concession below.
Jones was sentenced on count 4 to the upper term of three years. The sentence was enhanced by two consecutive one-year terms pursuant to section 667.5, subdivision (b). Sentencing on count 3 was stayed pursuant to section 654.
Sutton was sentenced on count 6 to the upper term of four years, which was doubled to eight years because of a prior strike conviction. The sentence was enhanced by two consecutive five-year terms based on a prior serious felony conviction (§ 667, subd. (a)) and the jury's gang findings (§ 186.22, subd. (b)(1)(B)). Sentencing on counts 4 and 5 was stayed pursuant to section 654.
Dixon was sentenced on count 6 to the upper term of four years. The trial court further imposed a consecutive 10-year firearm enhancement (§ 12022.5, subd. (a)) and, in reliance on section 186.22, subdivision (b)(1)(B), a consecutive five-year gang enhancement. A concurrent sentence was imposed for count 7. Sentencing on count 4 was stayed pursuant to section 654.
DISCUSSION
Alleged Instructional Error
Claims of instructional error are reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Hernandez (2013) 217 Cal.App.4th 559, 568 (Hernandez).)
Dixon contends that the trial court neglected a sua sponte duty to provide a unanimity instruction for the charge of assault with a firearm. He essentially argues that the jury's verdict on count 6 could have been based on different theories of liability, i.e. his actions could have been viewed as direct perpetration of the crime or as aiding and abetting commission of the crime by Sutton or the unidentified gunman. Sutton joins in the claim, similarly arguing that "[t]he jury could have found he aided and abetted Dixon, or the jury could have found that he aided and abetted the [unidentified gunman] who came out of the room after him and fired the shots from the top of the stairs."
"In California, a jury verdict in a criminal case must be unanimous. [Citations.] Thus, our Constitution requires that each individual juror be convinced, beyond a reasonable doubt, that the defendant committed the specific offense he is charged with. [Citation.] Therefore, when the evidence suggests more than one discrete crime, either (1) the prosecution must elect among the crimes or (2) the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. [Citations.] The unanimity instruction must be given sua sponte, even in the absence of a defense request to give the instruction." (Hernandez, supra, 217 Cal.App.4th at p. 569.)
Here, the convictions for assault with a firearm are based on actions that occurred in a matter of 20 seconds, at most. The verdicts rest on the same conduct, regardless of whether some jurors may have interpreted the conduct as aiding and abetting and others as direct perpetration of the offense. " '[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the "theory" whereby the defendant is guilty.' [Citation.] This is true even if the theories are based on different facts." (People v. Grimes (2016) 1 Cal.5th 698, 727.)
"Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes ... the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other." (People v. Santamaria (1994) 8 Cal.4th 903, 919.)
Case law further holds that "a ' "unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction." ' [Citation]. Specifically, '[t]he "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' " (People v. Williams (2013) 56 Cal.4th 630, 682.) The continuous conduct exception is invoked when multiple criminal acts take place " 'within a very small window of time.' " (Ibid.) "The justification for the exception is that there is no need for an instruction when there is a single course of conduct because members of the jury cannot distinguish between the separate acts. Further, the instruction is unnecessary when the defendant proffers the same defense to multiple acts because a guilty verdict indicates that the jury rejected the defendant's defense in toto." (Hernandez, supra, 217 Cal.App.4th at p. 572.)
Insofar as the evidence can be interpreted as demonstrating multiple acts of assault with a firearm, the brevity of the incident warrants application of the continuous conduct exception. This conclusion is supported by the jury's obvious rejection of appellants' respective defenses. Dixon's trial counsel argued that his client could not have aided and abetted the shooter because both individuals drew their guns at the same time and Dixon was not in a position to see what the other man was doing. Counsel conceded that Dixon aimed a gun at the victim, but urged the jury to find he had committed the lesser offense of brandishing a firearm. Whatever theory or theories they endorsed, all jurors clearly believed Dixon's actions constituted an assault. Sutton testified at trial and portrayed himself as an innocent bystander. The jury's verdict represents a complete rejection of his defense to the charge. For these reasons, as well as those discussed above, the claim of instructional error fails.
Sufficiency of the Evidence
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Kipp (2001) 26 Cal.4th 1100, 1128.) In considering the record as a whole, we " 'must accept logical inferences that the jury might have drawn from the circumstantial evidence.' " (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "Our role is to determine the legal sufficiency of the found facts and not to second[-]guess the reasoning or wisdom of the fact finder." (People v. Lashley (1991) 1 Cal.App.4th 938, 946.)
Evidence of the Westside Crips' Primary Activities
The relevant provisions of section 186.22 require proof of the existence of a "criminal street gang." (People v. Vasquez (2016) 247 Cal.App.4th 909, 922; see People v. Prunty (2015) 62 Cal.4th 59, 72, fn. 3 (Prunty).) The statute defines a criminal street gang as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f).) Appellants dispute the sufficiency of the evidence of the so-called "primary activities" element, and thus seek reversal of the gang-related convictions and enhancement findings.
The People's gang expert testified that the primary criminal activities of the Westside Crips include "weapons violations, which include possession of firearms, ... [and] assault with a deadly weapon." Elsewhere on direct examination, he reiterated that "[f]irearm possession is a primary activity of the Westside Crips." When asked on cross-examination to explain the term "primary activities," the expert replied, "Primary [--] just the activities of the gang that they regularly do. ... The way I define primary is ... the type of crimes within the gang that we primarily investigate and that we primarily look at that will actually -- that benefits the gang and that is part of the gang's established pattern." Defense counsel challenged the expert to provide "raw statistical data" showing which of the gang's crimes were committed more frequently than others, and the expert admitted that he could not.
Sutton, who is the main proponent of the claim on appeal, argues there is insufficient evidence that the Westside Crips qualify as a criminal street gang because "the expert (i) acknowledged there was no data showing which crimes had been committed by the gang, or how often those crimes had been committed, (ii) failed to explain what he meant when he said the enumerated crimes were committed 'regularly,' and (iii) failed to offer any specific evidence that Westside Crips committed the enumerated crimes of section 186.22, subdivision (e) consistently and repeatedly." We are not persuaded.
"The phrase 'primary activities,' as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the group's 'chief' or 'principal' occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group's members. ... Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony ...." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324 (Sengpadychith), italics omitted.) In practice, the required showing is easily made. The prosecutor typically asks a gang expert about the activities of a particular gang, and the expert, relying on his or her training and experience, attests to knowing that the gang's primary activities include the commission of one or more offenses listed in section 186.22, subdivision (e). (See People v. Nguyen (2015) 61 Cal.4th 1015, 1068 (Nguyen); Sengpadychith, supra, 26 Cal.4th at p. 324.)
The list of qualifying primary activities in section 186.22 includes various forms of unlawful firearm possession. (Id., subd. (e)(23), (31) [possession by a convicted felon], (32), (33).) The jury instructions advised that a criminal street gang is an organization, association, or group ... "having as one of its primary activities the commission of ... felony illegal possession of firearms, attempted murder, and felony assault." Standing alone, the expert's testimony was enough to satisfy the People's burden. (Nguyen, supra, 61 Cal.4th at p. 1068 [gang expert's testimony that certain crimes enumerated in § 186.22, subd. (e) were among a particular gang's primary activities constituted sufficient evidence]; see Prunty, supra, 62 Cal.4th at p. 82 [gang expert's testimony "that 'the Norteños' in the area engage in various criminal practices including homicide, assault, and firearms offenses" was "likely sufficient" to establish primary activities element].)
The jury could have also considered the following facts established at trial: (1) In 2012, Jones was convicted of being a felon in possession of a firearm; (2) In 2014, a Westside Crips member named Bennie Brown was convicted of carrying a loaded firearm in public as an active gang member; (3) Sutton stipulated to being a previously convicted felon during the relevant time period; (4) A photograph of a handgun that was taken with Sutton's cell phone was uploaded to Sutton's Facebook page on May 27, 2014 (thus suggesting his unlawful possession of a firearm on or about that date); and (5) Video evidence showed Sutton in possession of a handgun during the subject incident of June 3, 2014. Viewed in conjunction with the expert's testimony, and in the light most favorable to the judgment, this evidence was sufficient to establish the primary activities element. (Sengpadychith, supra, 26 Cal.4th at p. 323 ["Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities."]; People v. Vy (2004) 122 Cal.App.4th 1209, 1212, 1225 [commission of three violent assaults by members of defendant's gang within a 12-week period, including the charged offense, constituted sufficient evidence of the gang's primary activities].)
Firearm Possession
Jones and Sutton challenge the sufficiency of the evidence with regard to their possession of a firearm on the night of the shooting. Jones's claims are directed at counts 3 and 4. Sutton's claims are directed at counts 4, 5, and 6.
1. Sutton
Sutton maintains that there is no evidence of his actual or constructive possession of a firearm during the shooting incident. He disputes any contrary interpretations of the video evidence, claiming such conclusions necessarily "rest on suspicion, speculation, and guesswork." More specifically, he argues that the video "is not sharp enough for any reasonable person to conclude that [he had possession of a firearm]." The claim is meritless.
The video footage is of low resolution but far from unclear. Sutton simply refuses to acknowledge the distinction between reasonable inferences and speculation. "An inference is a logical and reasonable deduction or conclusion to be drawn from the proof of preliminary facts. [Citations.] It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference. ... [T]o constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference." (People v. Massie (2006) 142 Cal.App.4th 365, 373-374.)
In particular, the video footage captured by "Camera 14" at 1:55:41 a.m. is reasonably interpreted as showing an object in Sutton's right hand. Given the surrounding circumstances, a rational trier of fact could infer beyond a reasonable doubt that the object is a handgun. There is no basis for reversal.
2. Jones
Jones was convicted on count 4 of violating section 25850. This statute prohibits carrying a loaded firearm "on the person or in a vehicle while in any public place ...." (Id., subd. (a).) The crime is a felony "[w]here the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22 ...." (§ 25850, subd. (c)(3).) Jones does not dispute that he and his codefendants were shown to be active gang members, but challenges the jury's finding that he either carried a firearm on his person or aided and abetted someone else in committing the offense.
"A 'person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.' " (People v. Marshall (1997) 15 Cal.4th 1, 40.) Factors relevant to the determination of aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense. (Nguyen, supra, 61 Cal.4th at pp. 1054.) Although relatively uncommon, a defendant can be found guilty of aiding and abetting someone else's possession of contraband. (E.g., People v. Ortiz (1962) 208 Cal.App.2d 572, 581 (Ortiz) [aiding and abetting a spouse's unlawful possession of heroin].)
"One who is present and is aware of the acts of the perpetrator of the crime and either by acts of encouragement or warning or by gestures aids or encourages the commission of the crime is an aider and abettor and may be charged as a principal." (Ortiz, supra, 208 Cal.App.2d at p. 581, italics added.) Aiding and abetting may occur in the form of seeking to prevent the perpetrator from being apprehended while in possession of a prohibited item. (Id. at p. 582.) In this case, the video evidence shows Jones was in a position to see that Dixon was holding a firearm when he returned to the second floor landing after the shooting. At that time, Jones pointed Dixon in the direction that he and the others ultimately traveled during their flight from the crime scene. Based on the circumstantial evidence, one could infer Dixon was holding the loaded .9-millmeter Ruger that was later recovered on Bank Street. Dixon was a fellow gang member, which provided a motive for Jones to assist him in evading capture while in possession of the gun. Jones was also seated next to Dixon in the getaway car at the time of their arrest. Viewed as a whole and in the light most favorable to the judgment, the evidence is minimally sufficient to support a theory that Jones aided and abetted Dixon's carrying of a loaded firearm as an active gang member.
Turning to count 3, the crime of active participation in a criminal street gang "requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1132.) Section 186.22, subdivision (a) speaks in terms of willful promotion, furtherance, or assistance in criminal conduct by fellow gang members, but this element does not require proof of aiding and abetting. (People v. Rodriguez, supra, 55 Cal.4th at p. 1135; People v. Johnson (2014) 229 Cal.App.4th 910, 920-921 (Johnson).) In other words, liability can be found in a scenario where two gang members each directly commit a felony. (Johnson, supra, 229 Cal.App.4th at pp. 920-921 & fn. 33.)
Section 186.22, subdivision (a) is broadly worded to encompass "any felonious criminal conduct," meaning the predicate offenses need not be gang-related or enumerated in subdivision (e) of the statute. (People v. Albillar (2010) 51 Cal.4th 47, 55, 59.) However, the jury below was instructed that it had to find the defendants directly committed, or aided and abetted another in the commission of, "attempted murder, shooting at an occupied vehicle, assault with a firearm, felon in possession of a firearm, attempted voluntary manslaughter, [or] grossly negligently discharge of a firearm." Given Jones's limited participation in the underlying events, our analysis focuses on the crime of being a felon in possession of a firearm. Although he was not specifically charged with committing that offense, the jury was instructed on the necessary elements under count 5 in relation to Sutton. The jury was also aware that both Jones and Sutton were previously convicted felons.
"[A]n ex-felon who owns, possesses, or has custody or control of a firearm commits a felony. Implicitly, the crime is committed the instant the felon in any way has a firearm within his control." (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, original italics.) There are two forms of possession: actual and constructive. "Constructive possession exists where a defendant maintains some control or right to control contraband that is in the actual possession of another." (People v. Morante (1999) 20 Cal.4th 403, 417.) Joint constructive possession may be inferred from circumstances indicative of joint control and accessibility. (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on other grounds in People v. Daniels (1975) 14 Cal.3d 857, 862; see People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084; People v. Gant (1968) 264 Cal.App.2d 420, 423-425 [finding joint possession where the guns inside of a car in which defendants were travelling "were readily accessible to each and in the exclusive possession of neither."].)
The circumstances of this case are analogous to those in People v. Miranda (2011) 192 Cal.App.4th 398 (Miranda). There, the defendant was accused of participating in a shooting and fleeing in a vehicle with three other suspects. He was convicted of unlawful possession of a firearm by a felon based on his constructive possession of a shotgun. (Id. at pp. 404-405, 410-411.)
The Miranda defendant and his confederates had been pursued from the crime scene by police. The officers saw various items being thrown from the getaway car during the chase. Pieces of a broken shotgun and live ammunition were later found along the same route. (Miranda, supra, 192 Cal.App.4th at pp. 404-405.) The defendant acknowledged being inside of the vehicle, but claimed ignorance of the presence of guns therein; denied ever seeing a shotgun; and said that while he knew the backseat passengers were throwing items out of the windows, he had no knowledge of what those items were. (Ibid.) The Second District Court of Appeal affirmed the conviction, noting that possession "may be imputed when the contraband is found in a place which is immediately accessible to the joint dominion and control of the accused and another." (Id. at p. 410.) The presence of the shotgun during the car chase was inferable from the evidence that objects had been thrown from the car and from the subsequent recovery of a firearm along the flight path. There was also sufficient circumstantial evidence that the defendant had shared dominion and control over the weapon before it was discarded out the window. (Id. at p. 411.)
Here, there was strong circumstantial evidence that guns were present inside of the vehicle in which Jones and Sutton travelled immediately after the shooting. The more difficult question is whether each had a right to control those weapons. Since there was evidence of Dixon and Sutton having exchanged possession of the .9-millimeter Ruger back at the hotel, it is reasonable to conclude Sutton maintained a similar degree of dominion and control over the firearm during the defendants' flight. Reaching the same conclusion with respect to Jones approaches the line between reasonable inference and speculation. However, it is probative that Dixon, Jones, Sutton, and Weldon were fellow gang members and maintained close contact throughout the incident. Three of them exchanged possession of the .9-millimeter Ruger during a short period of time, which arguably suggested a shared right of control among the entire group. The evidence of such joint constructive possession is as strong, if not stronger, as that which was held to be sufficient in Miranda. Therefore, Jones's conviction for violating section 186.22, subdivision (a) may be upheld on the theory that he and Sutton had joint constructive possession of a firearm while inside of the black Crown Victoria.
Sentencing Error
As previously discussed, Dixon was sentenced to a 19-year prison term based on the following calculation: the upper term of four years for committing assault with a firearm (§ 245, subd. (a)(2)), plus a consecutive 10-year enhancement for personal use of a firearm (§ 12022.5, subd. (a)) and a consecutive five-year enhancement based on the jury's gang findings (§ 186.22, subd. (b)(1)(B)). Dixon contends that the trial court violated section 1170.1 by imposing multiple enhancements for his use of a firearm during the commission of a single offense. The People appropriately concede error.
The statute provides, in pertinent part: "When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury." (§ 1170.1, subd. (f).)
Section 12022.5, subdivision (a) provides that "any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years ...." The trial court obviously imposed the maximum punishment available under that statute. Section 186.22 contains separate enhancement provisions that apply to gang-related offenses. "Subdivision (b)(1)(A) of section 186.22 provides for additional punishment of two, three, or four years' imprisonment for most felonies. Under subdivision (b)(1)(B), the additional punishment is increased to five years for 'serious' felonies, which are defined in section 1192.7's subdivision (c). And under section 186.22, subdivision (b)(1)(C) ..., the additional punishment is increased to 10 years for 'violent' felonies 'as defined in subdivision (c) of Section 667.5.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 505 (Rodriguez).)
Assault with a firearm qualifies as both a serious felony (§ 1192.7, subd. (c)(1)(31)) and a violent felony (§ 667.5, subd. (c)(8)) for purposes of section 186.22. Under the holding of Rodriguez, supra, "a defendant's single act of personally using a gun during the commission of a felony [cannot] be used to support both a sentence enhancement for personal use of a firearm under [section 12022.5, subdivision (a)] and to elevate the punishment for a criminal street gang allegation to a 'violent felony' under section 186.22, subdivision (b)(1)(C)." (People v. Le (2015) 61 Cal.4th 416, 419 (Le), fn. omitted.) At Dixon's sentencing hearing, the probation department narrowly construed Rodriguez as only barring imposition of section 186.22's 10-year enhancement for violent felonies, not the five-year enhancement for serious felonies. The trial court impliedly adopted this reasoning when it followed the recommendation to impose a five-year gang enhancement for count 6.
While this appeal was pending, the California Supreme Court published Le, supra, which holds that "a trial court is precluded from imposing both a firearm enhancement under section 12022.5, subdivision (a)(1) and a serious felony gang enhancement under section 186.22, subdivision (b)(1)(B) when the crime qualifies as a serious felony solely because it involved firearm use." (61 Cal.4th at p. 429.) The predicate felony in Le was assault with a firearm. (Id. at p. 422.) It follows that the trial court below erred by imposing a five-year gang enhancement in addition to the 10-year firearm enhancement. The parties agree on the remedy of striking the section 186.22, subdivision (b)(1)(B) enhancement from the judgment. Dixon's aggregate prison sentence will thus be reduced to 14 years.
Proposition 57
Dixon's age at the time of his arrest was 17 years, five months. He was prosecuted as an adult pursuant to former Welfare and Institutions Code section 707, subdivision (d), which gave prosecutors discretion under specified circumstances to file charges against a minor directly in a court of criminal jurisdiction, "a practice known as 'direct filing' or 'discretionary direct filing.' " (People v. Cervantes (2017) 9 Cal.App.5th 569, 596, review granted May 17, 2017, S241323 (Cervantes).) Proposition 57, enacted by the electorate in November 2016, abolished the direct filing procedure.
"While prosecuting attorneys may move to transfer certain categories of cases to criminal court (Welf. & Inst. Code, § 707, subd. (a)(1)), they [no longer have] authority to directly and independently file a criminal complaint against someone who broke the law as a juvenile, even by committing the crimes that previously qualified for mandatory direct filing. In cases where transfer to adult court is authorized ..., the juvenile court now has sole authority to determine whether the minor should be transferred. [Citations.] Thus, Proposition 57 effectively guarantees a juvenile accused felon a right to a fitness hearing before he or she may be sent to the criminal division for prosecution as an adult." (Cervantes, supra, 9 Cal.App.5th at pp. 596-597, fn. omitted.)
The question presented is whether the provisions of Proposition 57 that prohibit direct filing of criminal charges against juveniles can be applied retroactively. There are at least seven published opinions on this very issue, and most of those cases are currently pending review by the California Supreme Court. The prevailing majority view is that the provisions are not retroactive. (Walker, supra, 12 Cal.App.5th at p. 698 [Fourth App. Dist., Div. One]; Marquez, supra, 11 Cal.App.5th at pp. 827-828 [Fifth App. Dist.]; Mendoza, supra, 10 Cal.App.5th at pp. 344-349 [Sixth App. Dist.]; Lara, supra, 9 Cal.App.5th at p. 775 [Fourth App. Dist., Div. Two]; Cervantes, supra, 9 Cal.App.5th at p. 597 [First App. Dist., Div. Four].) Two appellate panels have reached the opposite conclusion, and those cases endorse the conditional reversal of juvenile convictions that resulted from direct filing but are not yet final on appeal. (Pineda, supra, 14 Cal.App.5th at pp. 478-483 [Second Dist., Div. Five]; Vela, supra, 11 Cal.App.5th at p. 72 [Fourth App. Dist., Div. Three] ["the appropriate resolution is a conditional reversal dependent on the outcome of a juvenile transfer hearing on remand."].)
(People v. Pineda (2017) 14 Cal.App.5th 469, review granted Sept. 13, 2017, S243072 (Pineda); People v. Superior Court (Walker) (2017) 12 Cal.App.5th 687; People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017, S242660 (Marquez); People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela); People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017, S241647; People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, review granted May 17, 2017, S241231; Cervantes, supra, 9 Cal.App.5th 569.)
In Marquez, supra, our District held that the "suitability hearing provisions of Proposition 57 are not retroactive." (11 Cal.App.5th at p. 820.) In reaching this conclusion, we first observed that Proposition 57 is silent on the issue of retroactive application; the default rule is that no part of a statute is retroactive "unless expressly so declared." (Id. at p. 822, citing and quoting § 3.) We also found no clearly implied intent of retroactivity in the legislative history.
The spilt of authority has thus far turned on appellate courts' analysis of the so-called Estrada rule, i.e., the exception to the statutory proscription against retroactivity set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). (Compare Vela, supra, 11 Cal.App.5th at pp. 76-81 with Cervantes, supra, 9 Cal.App.5th at pp. 599-602.) "Under the Estrada rule, an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date." (People v. Floyd (2003) 31 Cal.4th 179, 184.) In Marquez, we concluded that "Estrada does not control because Proposition 57's transfer of the fitness hearing procedure to juvenile court does not reduce punishment for a particular crime." (Marquez, supra, 11 Cal.App.5th at p. 826.) The basis for this conclusion is detailed in Marquez, and we need not repeat it here. (Id. at pp. 824-827.) It suffices to say that we agreed with the reasoning in Cervantes, supra, 9 Cal.App.5th at p. 602: "Proposition 57 may or may not in some attenuated way affect punishment, but it is not a direct reduction in penalty as required for retroactivity under Estrada." (Marquez, supra, 11 Cal.App.5th at p. 826.)
Dixon claims Marquez was wrongly decided. He submits that Proposition 57 not only reduces punishment, but has the practical effect of completely eliminating punishment whenever juvenile courts decline to allow an accused minor to be prosecuted as an adult. The California Supreme Court will ultimately decide the merits of such arguments. At this juncture, we continue to subscribe to the views expressed in Marquez and other cases which hold that the juvenile provisions of Proposition 57 do not apply retroactively.
DISPOSITION
The judgments against Ladarieus Jones and Laderrick Sutton are affirmed.
We modify the judgment against Jaubrae Dixon by striking the five-year enhancement that was imposed for count 6 pursuant to section 186.22, subdivision (b)(1)(B) and reducing his sentence accordingly. As so modified, and in all other respects, the judgment against Dixon is affirmed. The trial court shall prepare an amended abstract of judgment to reflect the sentencing modification and send a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
GOMES, Acting P.J. I CONCUR: /s/_________
PEÑA, J. FRANSON, J., Concurring and Dissenting
I concur in all parts of the majority opinion except the Discussion finding Proposition 57 (Prop 57) prospective only. Because Prop 57 emphasizes juvenile rehabilitation, I would find Dixon entitled to a transfer hearing.
While there is a presumption that laws apply prospectively rather than retroactively, this presumption against retroactivity is a canon of statutory interpretation rather than a constitutional mandate. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1224.) In order to determine if a law is meant to apply retroactively, the role of a court is to determine the intent of the Legislature, or in the case of a ballot measure, the intent of the electorate. (People v. Conley (2016) 63 Cal.4th 646, 659.) The majority finds Prop 57 prospective only and, based on a panel of this court's earlier holding in People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017, S242660, finds no intent otherwise in either the wording of the Proposition itself, the legislative analyst's analysis, or the arguments for and against Prop 57.
Nor did the majority find the Estrada rule applicable to Prop 57. In Estrada, the defendant was initially convicted of a drug offense and committed to a rehabilitation center. (Estrada, supra, 63 Cal.2d at pp. 742-743.) Estrada left the center at some point, was later captured, and pled guilty to escape without force or violence. (Id. at p. 743.) At the time of Estrada's escape, the punishment for an escape was at least one consecutive year in prison. There was also a statutory delay in an inmate's parole eligibility. After Estrada's escape, but before his conviction, the Legislature amended the applicable statutes to make an escape without force or violence a wobbler, punishable by imprisonment in the state prison for a term of not less than six months, nor more than five years, with no delay in parole eligibility. (Id. at pp. 743-744.)
In re Estrada (1965) 63 Cal.2d 740 (Estrada). --------
The Supreme Court reasoned Estrada was "entitled to the ameliorating benefits of the statutes" as they had been amended. (Estrada, supra, 63 Cal.2d at p. 744.) Recognizing the general rule of construction that, when there is nothing to indicate otherwise, a statute will be presumed to operate prospectively and not retroactively, the Supreme Court stated the "rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent." (Id. at p. 746.)
The Estrada rule, as later explained by our Supreme Court in People v. Brown (2012) 54 Cal.4th 314, 323 (Brown), "supports an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." By imposing the more severe penalty after such a pronouncement does nothing "other than to satisfy a desire for vengeance." (Estrada, supra, 63 Cal.2d at p. 745.) This includes acts committed before passage of the legislation provided the judgment convicting the defendant of the act is not final. (Ibid.)
The majority finds the Estrada rule inapplicable because Prop 57 is not a direct reduction in penalty, as required for retroactivity under Estrada, but it instead may or may not affect punishment in some attenuated way. (Brown, supra, 54 Cal.4th at p. 325; People v. Cervantes (2017) 9 Cal.App.5th 569, 600, review granted May 17, 2017, S241323.)
I respectfully disagree. The express intent of Prop 57, according to the official ballot pamphlet, is to "Stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles," and "Require a judge, not a prosecutor, to decide whether juveniles should be tried in adult court." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p. 141.) Prop 57 also provides that: "This act shall be liberally construed to effectuate its purposes." (Voter Information Guide, Gen. Elec., supra, text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 9, p. 146.) Thus "the intent of the electorate in approving Proposition 57 was to broaden the number of minors who could potentially stay within the juvenile justice system, with its primary emphasis on rehabilitation rather than punishment." (People v. Vela (2017) 11 Cal.App.5th 68, 76, review granted July 12, 2017, S242298 (Vela).) The question then becomes whether this express intent extends to Dixon, whose case was directly filed in a criminal court by a prosecutor without the benefit of a juvenile transfer hearing, but whose case is not yet final on appeal.
I believe it does. The impact of the decision to prosecute Dixon in criminal court rather than juvenile court could mean the difference between his sentence of 14 years, or a discharge from the Division of Juvenile Justice's custody at a maximum of age 23 or approximately five-plus years. As such, for a minor such as Dixon accused of various crimes, it is a potential "ameliorating benefit" to have a neutral judge, rather than a district attorney, determine if he is unfit for rehabilitation within the juvenile justice system. To hold otherwise would mean the electorate was motivated by "a desire for vengeance" against Dixon and similarly situated minors, which would be at odds with the intent of the electorate in its approval of Prop 57. (Estrada, supra, 63 Cal.2d at p. 745.)
The majority argues that Estrada's retroactivity rule only applies in the specific situations where the law unambiguously reduces a sentence of liability for a particular crime, which Prop 57 does not do. However, as explained very recently in Vela, "a close reading of Estrada reveals that the Legislature did not unambiguously reduce the sentence for Estrada's particular crime: an escape without force or violence." (Vela, supra, 11 Cal.App.5th at p. 78, review granted.)
As explained in Vela, Estrada had been convicted of an escape without force or violence under the then existing version of the escape statute. On the day of his escape, the statute made no distinction between an escape with force or violence or one without. Every defendant convicted of an escape was required to be sentenced to a term of not less than one year in state prison consecutive to his or her commitment offense and a two-year minimum period for parole consideration after being returned to custody following the escape. (Estrada, supra, 63 Cal.2d at p. 743.) Prior to Estrada's case becoming final, the Legislature amended the escape and parole statutes. While the sentence for an escape with force or violence remained the same, a sentence for an escape without force or violence was changed to not less than six months nor more than five years. (Ibid.) The Legislature also amended the parole statute to no longer require a minimum period before parole consideration following an escape. In Estrada's case, he was being held in custody because his parole eligibility had been delayed. (Ibid.)
"However, the sentence for Estrada's particular crime - an escape without force or violence - was not 'unambiguously reduced' by the amendment. That is, after the Legislature amended the escape statute, a court could still sentence a particular defendant to a one-year or greater consecutive sentence for a nonviolent escape and still have remained within the five-year sentencing range. Thus, the actual effect of the amendment was to create the possibility for a reduction in a defendant's sentence based on the discretion of the court and a defendant's particular circumstances." (Vela, supra, 11 Cal.App.5th at p. 79, review granted.)
As such, I would find, as did the court in Vela, that "[w]hen a change in the law allows a court to exercise its sentencing discretion more favorably for a particular defendant, the reasoning of Estrada applies." (Vela, supra, 11 Cal.App.5th at p. 79, review granted.) The Estrada rule was also held to apply in People v. Francis (1969) 71 Cal.2d 66 (Francis), in which the defendant was convicted of a felony drug offense. While his case was pending on appeal, the drug offense statute was amended to change it from a straight felony to a wobbler, allowing it to be charged as a felony or misdemeanor. The Francis court reasoned that, while the amendment did not guarantee the defendant a lower sentence, making the crime punishable as a misdemeanor showed legislative intent that punishing the offense as a felony might be too severe in certain cases. (Id. at pp. 75-76.)
Prop 57 removes from prosecutors the discretion to directly file cases against minors in criminal courts. As such, a juvenile court judge can exercise his or her discretion in some cases and determine that a minor should remain in the juvenile justice system rather than face prosecution and sentencing in the criminal courts. "For those minors who remain in the juvenile court, with its primary emphasis on rehabilitation rather than punishment, the potential effect of that 'ameliorating benefit' is analogous to the potential reduction in a criminal defendant's sentence as in Estrada and Francis." (Vela, supra, 11 Cal.App.5th at p. 80, review granted.)
Because Dixon's judgment is not yet final, I would conditionally reverse the judgment of the criminal court as to him and remand the cause to the juvenile court with directions to conduct a transfer hearing within 90 days from the filing of the remittitur. If, after the transfer hearing, the juvenile court determines that it would have transferred Dixon to a court of criminal jurisdiction, then the judgment would be reinstated as of that date.
If, at the transfer hearing, the juvenile court determines Dixon is amendable to rehabilitation and should remain within the juvenile justice system, then his conviction would be deemed to be juvenile adjudications as of that date and the juvenile court would impose an appropriate disposition with its discretion under juvenile court law.
/s/_________
FRANSON, J.